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The epic legal battle for Omar Khadr’s release

Omar Khadr's Canadian lawyers, Dennis Edney, left, and Nathan Whitling, have been fighting for more than a decade to have former Guantanamo Bay detainee Omar Khadr released from custody. (Ian Jackson / THE CANADIAN PRESS)

EDMONTON—There are not many lawyers who would offer a home to their clients or fight for more than a decade on their behalf, given the enormous financial and personal cost.

But Edmonton lawyers Dennis Edney and Nathan Whitling, who have doggedly defended Omar Khadr, are unlike many lawyers.

And they are also unlike each other, Edney as outspoken and emotional as Whitling is quiet and reserved.

On Tuesday, the unprecedented Khadr legal saga continues, but this time, with the prospect that the 28-year-old will be released from custody for the first time in nearly 13 years.

The pair from Edmonton had no idea in December 2003, when they stepped out of a cab and knocked on the door of Khadr’s grandparents’ home in Scarborough, that they would still be fighting an epic legal battle for his release.

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Edney’s own sons, who are close to Khadr’s age, have graduated from high school and gone to university, while Whitling’s young family has grown from two kids to four — a stark indicator of the passage of time.

“Obviously, we couldn’t foresee where it might go,” Whitling said. “We knew it was going to be a complicated case but we didn’t anticipate all of this.”

This meaning Khadr’s legal odyssey: three times to the Supreme Court of Canada, dozens of lower court hearings, a multimillion-dollar civil lawsuit and more than half a million in taxpayer dollars spent on the government’s legal fight against the former Guantanamo Bay detainee.

So far, Ottawa has lost every case.

And that’s just the court challenges in Canada; there have been dozens of hearings in Guantanamo and the U.S. that continue today.

“The main theme that I take away from all of this is the extent to which Omar’s just been buried in process, buried in judicial delays, both in the U.S. and Canada and many, many years later it’s going to turn out there never was any basis for his detention,” said Whitling.

“Both governments all along knew there were major flaws with this system in Guantanamo, but they had just enough of a legal argument to drag things out for years and years.”

The Obama administration was eager to have the Khadr case wrapped up, offering him an eight-year sentence in 2010 and a chance to return to Canada as part of a plea deal. Guantanamo’s chief prosecutor at the time said while the war crimes legislation under which Khadr was charged did not have provisions for youths, his age was taken into consideration for sentencing.

But the fact that Khadr was 15 when captured and has already spent two years more in custody than he would were he convicted for murder in Canada has not been a factor for Ottawa.

Toronto criminal lawyer Reid Rusonik, who is not connected to the case, said the Khadr litigation is less about jurisprudence and more about the court of public opinion.

“There’s no crucial legal precedent to be worried about here. It’s basic fairness at stake,” he said. “From a lawyer’s point of view, this has been political from the outset. If this had been decided purely according to established legal principles of fundamental fairness, it would have been done a long time ago and he would have been out a long time ago.”

There is no doubt this case has been politically charged, especially heightened now in an election year with the Conservative government’s so-called tough on crime platform.

But looking back now, Whitling blames more than just Prime Minister Stephen Harper’s office for this contentious political environment.

“We as a defence team are as guilty as you as the media, turning this into a political case and it caused the politicians to dig in,” Whitling said. “At one time we had people in the NDP and Liberals supporting Omar Khadr and that’s when the Conservative government really dug in and they’re still there and they’re never going to come out of it.”

Khadr’s Pentagon lawyers often pushed this strategy, Whitling said, trying to follow the path set by other military lawyers that lobbied Western governments until their clients at Guantanamo were freed.

Australian detainee David Hicks was one example where public pressure forced political intervention in securing his release.

But the Khadr case was unique, largely because of the unpopularity of his family and allegations that he had killed a U.S. soldier when Canada had troops in Afghanistan.

If they are successful tomorrow, it’s the courts, not demand from the public that will set Khadr free.

“We’ve been fighting for more than 10 years to get him out,” Edney said, adding he is optimistic that Khadr will be having dinner with his family Tuesday night.

“Tomorrow could be an incredible day.”

Khadr’s Canadian legal odyssey

August 2005: Alberta Court rules that Omar Khadr’s constitutional rights were violated and grants an injunction prohibiting Canadian agents from further interrogating Khadr in Guantanamo. Ottawa does not appeal.

May 2008: Supreme Court of Canada orders the release of video showing an officer with Canada’s spy service interrogating Khadr in Guantanamo.

January 2010: Supreme Court of Canada rules Khadr’s constitutional rights were violated by Canada’s interrogation in Guantanamo but does not order Ottawa to seek his return.

October 2014: Federal Court agrees to defence request to expand Khadr’s ongoing civil lawsuit to include claim that Canada conspired with U.S. to torture him during interrogations.

July 2014: Alberta Court of Appeal rules Khadr should have been treated as a juvenile due to eight-year sentence and Ottawa erred in placing him in a federal penitentiary upon his return to Canada.

December 2014: Supreme Court of Canada agrees to hear government appeal in case concerning Khadr’s juvenile status. Will be heard in mid-May.

April 2015: Court of Queen’s Bench Alberta orders Khadr released on bail pending the U.S. appeal of his Guantanamo conviction.

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